Appeals court to hear Prop 8 arguments

Two protestors who declined to give their names rally with other gay marriage supporters on Thursday, Aug. 19, 2010, at the intersection of Santa Monica Blvd. and San Vicente Blvd. in West Hollywood, Calif. Protestors gathered following the U.S. Ninth Circuit Court of Appeals' freezing of a federal judge's decision ruling California's gay marriage ban, Proposition 8, unconstitutional, halting gay marriages in the state. (AP Photo/Adam Lau)

December 5, 2010 5:42:32 PM PST

by Tomas Roman

SAN FRANCISCO --

A historical event is will take place Monday as the U.S. 9th Circuit Court of Appeals hears arguments on whether Prop 8, which outlawed same-sex marriage, will stand as law or remain unconstitutional.

Only a few people ignored the rain to gather in San Francisco Sunday to rally against Prop 8, but they say hundreds will show up Monday when a federal three-judge panel decides the future of Prop 8.

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Tune in as ABC7's Eric Thomas hosts a live webcast during the historic Prop 8 hearing on ABC7News.com starting at 10 a.m. Monday. =======================================================

John Lewis and Stewart Gaffney have been together for 23 years and are married. They want to stay that way

"There shouldn't be haves and have nots in this state. Marriage should not be a limited-time offer," John Lewis told ABC7.

Proponents of Prop 8 will have to prove they have the right to appeal a state judge's ruling which found the 2008 law unconstitutional. ABC7 News legal analyst Dean Johnson says their right to appeal will take up the first hour of the televised hearing.

"Usually, we don't allow somebody who has that sort of abstract interest, as opposed to a particularized personal interest in a matter, to pursue federal lawsuits. They're going to have a very difficult argument as to standing," he says.

Judge Vaughn Walker allowed the group "Protect Marriage" to present evidence at his trial, but that right may not translate to the federal appeals court. Attorney Jim Cambell of the Alliance Defense Fund, one of Prop 8's defenders, believes they have strong legal standing.

"The United States Supreme Court has recognized that when a state court allows proponents to intervene when the attorney general refuses to defend a law, that the federal courts will do likewise," he says.

Attorney General Jerry Crown decided not to defend Prop 8 when Judge Walker ruled it unconstitutional last August writing, "The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite couples."

Same-sex marriage advocates worry that the Supreme Court has a history of reversing many of the 9th Circuit's rulings, especially since the court is seen as being conservative. Both Johnson and Campbell believe the case is headed to Washington D.C.

"The decision whether or not to take any case that they are asked to, we can only speculate, but I do believe that if the court strikes down Proposition 8, that the Supreme Court will take a serious look at this case," Campbell says.

Johnson says the make-up of Monday's panel, consisting of a liberal, a conservative and a moderate, will give both sides an idea of what kind of arguments and questions they will face if, in fact, the case goes to the Supreme Court.